Opinion
No. 71-147 (Supreme Court No. 24534)
Decided June 2, 1971.
Board of Barber Examiners appealed order of district court reversing Board's suspension of licenses of two barbers. Affirmed
1. ADMINISTRATIVE LAW AND PROCEDURE — Board of Barber Examiners — Rules — Legitimate Relationship — Statute and Objectives — Required. Rules and regulations promulgated by the Board of Barber Examiners must have a legitimate relationship to express statutory provisions and objectives to be served thereby.
2. Board of Barber Examiners — No Power — Control — Barber Training — Beyond — Granting of License. The Board of Barber Examiners has no power to set up rules and regulations controlling the training of barbers beyond the point when the license to practice is granted, and thus the Board exceeded its statutory authority in adopting rules governing demonstrations and advanced or upgrade training classes.
Error to the District Court of the City and County of Denver, Honorable Sherman G. Finesilver, Judge.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, William Tucker, Assistant, for plaintiff in error.
Rector, Kane, Donley Wills, Jerry A. Donley, for defendants in error.
This case was transferred from the Supreme Court pursuant to statute.
This is a case of first impression in Colorado concerning the authority of The Colorado State Board of Barber Examiners (Board) to control and regulate "demonstrations" and "advanced or upgrade training classes" for licensed barbers.
The facts of this case material to the determination of this appeal are not in dispute. Lynn G. White and Marvin L. Rushing are licensed barbers and own and operate separate barber shops in Colorado Springs. White also owns the Colorado franchise of Roffler Sculptur-Kut which is a national organization that specializes in teaching a particular technique of men's hair styling and the sale and distribution of certain equipment and products related to hair styling. On or about August 15, 1968, White contacted the Board concerning his desire to hold advanced training courses in the Roffler technique. The Board advised him that he could teach the technique only in a licensed barber college of which there are three in Colorado. White was unable to make satisfactory arrangements with any of the schools though he did hold two sessions in one of the schools. White met with the Board on two subsequent occasions to obtain a license or permission to hold a hair styling course outside the licensed schools. This request was denied on the basis that the Board did not have the authority to license a hair styling school as distinguished from the barber training school. Rushing was a franchisee of Roffler and was present with White at two of the meetings with the Board.
On October 25, 1968, White notified the Board by letter that he would be conducting a sales meeting in Colorado Springs on October 28, 1968, and attached a list of the persons that would be in attendance. The Board inspector was allowed into the meeting. White had rented Rushing's barber shop for the meeting and was instructing the persons present in the sale and use of Roffler products and the Roffler technique of hair styling. All of the persons participating in the training were licensed barbers and all had had prior advanced training in hair styling techniques.
As a result of this meeting, White was charged by the Board with having conducted a school or a demonstration without prior approval of the Board. Rushing was charged with conducting or allowing to be conducted a barber school or demonstration on his premises without prior approval.
Following a hearing, the Board suspended the licenses of both men. Appeal was taken to the District Court which reversed the Board and the Board now seeks a reversal of the court order.
C.R.S. 1963, 15-1-1, et seq., provides for the creation of the Board, supervision of and licensing of barber schools, examination of and licensing of barbers, inspection of barber shops and schools and revocation of licenses.
C.R.S. 1963, 15-2-1, et seq., is designed to regulate unfair practices. A study of this entire article clearly indicates its purpose is to stabilize the economics of the barbering business so that barbers can afford to maintain safe and healthful premises and equipment for the protection of the public. The Board is given broad powers to regulate and supervise the "barbering industry * * * in accordance with the laws heretofore enacted and in this article enacted * * *." C.R.S. 1963, 15-2-4(1)(a)(b).
In 1966, the Board adopted certain rules which prohibit demonstrations without Board approval and prohibit any advanced or upgrade training classes without prior approval by the Board and require that such training must be done in a licensed barber school.
It is generally conceded that White and Rushing were in violation of these particular rules. The question is whether the Board has the authority to adopt and enforce rules controlling this phase of a barber's business. The statutes are silent as to the Board's control over demonstrations, advanced or upgrade training classes.
[1,2] Rules and regulations promulgated by the Board must have a legitimate relationship to express statutory provisions and objectives to be served thereby. See Liebhardt v. Tasher, 132 Colo. 554, 290 P.2d 1107; Graham Furniture Co. v. Industrial Commission, 138 Colo. 244, 331 P.2d 507. Advanced or upgrade training has nothing to do with licensing of barbers nor do we find any relationship to unfair practices or the protection of the public on the basis of welfare, health and safety. The legislature has not seen fit to extend the Board's control over the training of barbers beyond the point when the license to practice is granted. Therefore, the Board has no power to set up rules and regulations controlling such training. See, State Board of Barber Examiners v. Walker, 67 Ariz. 156, 192 P.2d 723.
The Board concedes that in the absence of specific legislation, other professional and business people in Colorado are not subjected to board control in the area of advanced or upgrade training. However, the Board contends it is necessary in the barbering business because of the importance of maintaining sanitary and healthful conditions for the protection of the public. We find no merit to this argument. Under existing legislation, the Board has continuing jurisdiction to inspect licensed barbers, barber shops and schools to see that health standards are maintained for the protection of the public.
We agree with the ruling of the trial court that the Board exceeded its statutory authority in adopting the rules governing demonstrations and advanced or upgrade training classes. There being no evidence that either White or Rushing were in violation of any statutory provisions or any other rules or regulations, it was error for the Board to have suspended their licenses.
The judgment of the trial court, setting aside the Board's order suspending the licenses of Lynn G. White and Marvin L. Rushing, is affirmed.
JUDGE COYTE and JUDGE DUFFORD concur.